Matter of Telemaque v New York City Board/Department of Educ.

Matter of Telemaque v New York City Board/Department of Educ. 2017 NY Slip Op 01834 Decided on March 15, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 15, 2017
Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, JJ.
3413N 100128/15

[*1] In re Veronica Telemaque, Petitioner-Appellant,

v

New York City Board/Department of Education, Respondent-Respondent.

Veronica Telemaque, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Shlomo Hagler, J.), entered on or about October 13, 2015, denying petitioner's motion to vacate an arbitration award, dated January 16, 2015, which terminated petitioner's employment with respondent based upon findings of misconduct, and dismissing the proceeding brought pursuant to CPLR article 75, unanimously modified, on the law, to confirm the arbitration award, and otherwise affirmed, without costs. The Clerk is directed to enter judgment confirming the award (CPLR 7514[a]).

The hearing officer's determination was rational and not arbitrary and capricious (see City School Dist. of the City of N.Y. v McGraham, 75 AD3d 445, 450 [1st Dept 2010], affd 17 NY3d 917 [2011]), given his credibility findings, which are largely unreviewable (see Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, 420 [1st Dept 2013]). The motion court properly concluded that petitioner failed to demonstrate by clear and convincing evidence that the hearing officer was biased against her (see Matter of Moran v New York City Tr. Auth., 45 AD3d 484, 484 [1st Dept 2007]). Petitioner voluntarily signed a release for her medical records, and the hearing officer's reference to those records did not show prejudice.

The record reflects that petitioner was accorded due process. She waived her assertion that the principal was not authorized to prefer charges against her, since she failed to raise that argument in the arbitration proceeding (see Matter of Stergiou v New York City Dept. of Educ., 106 AD3d 511, 512 [1st Dept 2013]).

The penalty imposed is not disproportionate to the offense, given petitioner's lack of remorse or appreciation of the seriousness of her threats of violence (see Matter of Villada v City of New York, 126 AD3d 598, 599 [1st Dept 2015]).

We modify solely to confirm the arbitration award (see CPLR 7511[e]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 15, 2017

CLERK